Opinion
[No. 159, October Term, 1955.]
Decided May 4, 1956.
APPEAL — From Order Sustaining Demurrer to Bill — Appellant No Longer Relying upon Facts Alleged — Ruling Below Not Passed on. On appeal from an order sustaining a demurrer to a bill of complaint, where appellant no longer relied upon the facts alleged in the bill and no justiciable controversy existed on the state of facts admitted by the demurrer, this Court found it inappropriate to review the trial court's ruling on demurrer. p. 62
APPEAL — Remand of Case Without Affirmance or Reversal to Bring in New Parties. The State Roads Commission appealed from an order sustaining a demurrer to its bill to set aside a deed and recover the purchase price paid, which charged that appellees had induced it to purchase certain land at $26,500 by fraudulent and false representations that they had an executed contract with others for its purchase at $26,000. Appellees moved to dismiss the appeal, alleging that in a deposition taken from a Commission employee five days earlier, he admitted that he had arranged with another person for the purchase of the land from its prior owner and its transfer to appellees as "straw men"; that he falsely told his superiors that he had negotiated with appellees and that they had the aforementioned $26,000 contract, whereas he had no such negotiations and no knowledge of such a contract; and that the option to the Commission purportedly signed by appellees was in fact signed by another. This Court denied the motion to dismiss, and remanded the case without affirmance or reversal to permit the Commission (which no longer relied upon the facts alleged in the bill) to bring in other parties, while keeping appellees as proper, if not necessary, parties to the proceeding. The deposition did not entirely exonerate appellees from complicity in the alleged fraud; they executed the deed, and the purchase money was presumably paid to them or passed through their hands. Code (1951), Art. 5, § 42; Rules, General Equity (1955 Ed.), Rule 17. pp. 61-62
COSTS — On Appeal — Remand Without Affirmance or Reversal — Abide Ultimate Result. In remanding a case without affirmance or reversal for further proceedings, Code (1951), Art. 5, § 42, this Court held that the cost of the appeal should abide the ultimate result in the court below. pp. 62-63
J.E.B.
Decided May 4, 1956.
Appeal from the Circuit Court for Montgomery County (LAWLOR, J.).
Suit by the State Roads Commission of Maryland against John B. Hudson and Dorothy Hudson, his wife, to set aside a deed from defendants to complainant on the ground that defendants induced the purchase by fraudulent and false representations, to recover the purchase price paid, and for other and further relief. From an order sustaining a demurrer to its bill, complainant appeals.
Case remanded without affirmance or reversal for further proceedings not inconsistent with this opinion, costs to abide the result.
The cause was argued before BRUNE, C.J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
Joseph D. Buscher, Special Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and William B. Wheeler and Herbert L. Cohen, Special Attorneys, on the brief, for the appellant. A. Slater Clarke for the appellee.
The State Roads Commission took this appeal from an order of the Circuit Court for Montgomery County passed on October 10, 1955, sustaining a demurrer to its bill of complaint. The bill alleged that the complainant had been induced to purchase a certain parcel of land at a price of $26,500.00, by reason of fraudulent and false representations made by the defendants that they had an executed contract with other persons for the purchase of the land at a price of $26,000.00. The bill prayed that the deed exhibited with the bill of complaint be set aside and the purchase price returned, and for other and further relief. The Chancellor expressed the view that the appellant was not justified in relying upon the alleged misrepresentation under the circumstances.
On March 20, 1956, the appellees filed a motion to dismiss the appeal, alleging that on March 15, 1956, the appellees took a deposition in this cause of Mr. Ben DuPre, former employee of the State Roads Commission. In this deposition the witness admitted that, while employed by the appellant in October, 1954, as Assistant Right of Way Engineer, he had arranged with one Gus Basiliko for the purchase of this property from its then owner, Mr. McKome, and its transfer to the appellees as "straw men". He also admitted that he falsely informed his superiors that he had negotiated with the Hudsons and that they had a contract to buy the property at a price of $26,000.00, whereas he had no negotiations whatever with them, and no knowledge of such a contract. He testified that the option to the appellant, purporting to be signed by the Hudsons, was in fact signed by Gus Basiliko.
On March 29, 1956, the appellant filed a petition and answer to the motion to dismiss the appeal, attaching a copy of the deposition referred to in the motion to dismiss. The petition prayed that the case be remanded without affirmance or reversal in order that amendments might be made and additional parties added. It opposed the dismissal of the appeal, although conceding that the factual basis, on which the allegations of false representations by the appellees had been based, was now lacking.
We think the petition should be granted and the motion to dismiss the appeal should be denied. It would be inappropriate to review the court's ruling on demurrer, when the appellant no longer relies upon the facts alleged in the bill, and no justiciable controversy exists on the state of facts admitted by the demurrer. Cf. Fallin v. Mayor, etc., of Baltimore, 193 Md. 464, 471. On the other hand, the deposition does not entirely exonerate the appellees from complicity in the alleged fraud. It is not denied that the deed was executed by the appellees. Presumably the purchase money was paid to them or passed through their hands. Without passing on the merits of the case as presented on demurrer, we think the appellant should not be foreclosed from bringing in other parties and from keeping the appellees in the case as proper, if not necessary, parties to a proceeding to set the deed aside and recover the purchase price. We are authorized to remand a case if "the purposes of justice will be advanced by permitting further proceedings in the cause, either through amendment of any of the pleadings or the introduction of further evidence, making additional parties, or otherwise, * * *." Code (1951), Art. 5, § 42. See also Rule 17 of the General Equity Rules. Cf. Lewis v. Snowden, 204 Md. 583, and Krauss v. Litman, 189 Md. 394, 401. We think this is a proper case to exercise that authority. The case of Smith v. Hooper, 95 Md. 16, 33, is distinguishable, for there the motion to remand came after the case had been decided on the merits by this Court, and the alleged inaccuracy of the previously conceded facts was disputed. Schneider v. Davis, 194 Md. 316, 323, is likewise distinguishable, for there a remand was denied because of laches and because it would have involved the setting up of a new and different case upon an inconsistent theory. Here the theory of the case would not be altered by bringing in new parties, although the instigation of the alleged fraud may be traced to others and the purchase money may have passed into other hands.
Although it is argued that the costs of this appeal should be allowed to the appellees, we think the costs should abide the ultimate result in the court below, in accordance with the established practice. Smith v. Shaffer, 50 Md. 132, 137; B. O.R.R. Co. v. Silbereisen, 121 Md. 407, 421; Lewis v. Snowden, supra.
Case remanded without affirmance or reversal for further proceedings not inconsistent with this opinion, costs to abide the result.